Last month the U.S. Supreme Court heard oral arguments in a pregnancy discrimination suit, Young v. UPS. In 2006, Peggy Young worked as a UPS driver delivering airmail packages to customers. When Young became pregnant while employed by the company, her midwife recommended that she lift nothing heavier than 20 pounds while at work. Yet Young’s job duties required her to lift boxes that weighed up to 70 pounds.

Young requested work accommodations for her condition, but was denied and eventually quit her job. She later filed suit, claiming that UPS violated the Pregnancy Discrimination Act of 1978 (PDA), which protects against workplace discrimination on the basis of pregnancy, childbirth, or related medical conditions.

In a brief filed before the Supreme Court, UPS argued that the company’s so-called “light duty accommodations” are “pregnancy blind.” Only employees injured on the job or ineligible for commercial driver’s licenses due to injury—or with a disability as defined by the Americans with Disabilities Act—can qualify for such work accommodations. One month before oral arguments were to begin, UPS announced that it would include pregnancy as a qualification for light duty accommodations.

It’s been 36 years since the PDA was enacted. During that time frame, only two other Federal workplace discrimination laws that protect new and expecting parents have passed: The Family and Medical Leave Act (FMLA) in 1993, and the Reasonable Break Time for Nursing Mothers’ Law in 2010. The FMLA allows both men and women to take an unpaid, 12-week leave of absence to care for a new child or a family member who is seriously ill. The nursing mothers’ law gives women time and access to a private room while on the job.

Collectively, these Federal laws contribute greatly toward workplace protections for new mothers and fathers. But of the three, the FMLA most significantly altered the workplace ethos. The law introduced the concept of family leave where it didn’t exist before, and it expanded employee expectations of acceptable time off.

Twenty years later, the law continues to influence the evolution of workplace benefits across the U.S., but with mixed results. The options for employees to access family leave are best described as a hodgepodge of workplace policies. The current plans vary from state to state and company to company. Numerous factors are taken into account: public vs. private employers; salaried employees vs. hourly wage earners.

The muddled workplace standards can be broken down into two main categories—paid leave and unpaid leave. Within these two classifications is a subset of state and local laws that guide both public and private employers.

Unpaid Family Leave—the Federal Way

It is safe to say that the FMLA fundamentally changed the definition of maternity leave. The law expanded the footprint of traditional maternity leave to include time off to care for a newly adopted or foster child. It also challenged the social conventions that only the mother needed time to bond with a new addition to the family by including men as qualifying candidates. The law also permitted employees to use the 12-week time period to care for a family member that was seriously ill, or to recover from a serious illness themselves. Most importantly, it gave employees access to time off while protecting their jobs. Employees who use the FMLA are not paid during their allotted break, but they cannot be fired either. Employers must hold their positions open.

The reach of the FMLA is also seen in the lexicon. Prior to the law, employers and employees referred to “maternity leave.” While that term is still common, according to Abraham Z. Melamed, author of Daddy Warriors,“family leave” is now the preferred, all-encompassing term for workplace leave benefits, plans, and policies.

Although the FMLA was passed in 1993, that year was not the first time the bill was introduced in Congress. The initial attempt came in 1984, but, with little traction, the bill floundered. Supporters worked to build a bipartisan coalition, introducing the bill every year for nine straight years. It was finally signed into law under President Bill Clinton, and some consider it the first significant piece of legislation passed by his administration.

Despite the FMLA’s wide-reaching influence, not all U.S. workers meet the law’s eligibility guidelines. The law is only applicable to employees who work for a company with 50 or more people, have been on the job for at least a year, and have worked a minimum of 1250 hours yearly—about 25 hours weekly.

Roughly 60 percent of employees nationwide can qualify to take time off through FMLA, leaving 40 percent with no option of family leave. Most of the people who cannot access FMLA benefits are low-wage hourly employees. Nearly 80 percent of workers who do not take advantage of FMLA say it’s because they cannot afford the unpaid time off. Even so, nearly 50 million employees have used the FMLA for workplace leave since it was signed into law more than 20 years ago. Nearly one-fifth of those requests have been to care for a new child.

States are Paving the Way

While the FMLA has remained unchanged for more than 20 years, some states have taken it upon themselves to expand upon federal law. Roughly one-third of all states have loosened some of the work restrictions dictated by the FMLA, making it easier for parents to get time off. In Oregon, companies with 25 employees or less qualify for unpaid leave, while Iowa and Kansas went all the way down to four employees. Maine only requires 10 employees to qualify, and the District of Columbia requires 25 employees.

It’s true that, for decades, maternity leave was essentially non-existent in the workforce. Before the 1960s, approximately 70 percent of U.S. women did not work outside the home. Women who did work and got pregnant usually quit their jobs after giving birth. But by the early 70s, as more women entered the workforce, a handful of states passed laws that allowed some pregnant employees to qualify for temporary disability insurance. This gave them the time off and the compensation to recover during those weeks following the birth of a baby. As more women entered the workplace, more states followed and private sector employees began to include maternity leave in their benefits packages. Public employee unions began to demand some type of paid maternity leave in their collective bargaining agreements as well. According to Rosa Wiener, author of Pregnant Teachers in the Classroom, teacher’s unions were among the first to make this demand. In 1971, three teachers in Ohio filed a suit claiming that the the state’s mandatory unpaid maternity was a violation of the Fourteenth Amendment’s equal protection clause. The Supreme Court eventually ruled that the law denied women teachers their right to due process of law, since it didn’t respect their will to bear children.

Today, just five states in the U.S. hold laws that ensure paid maternity leave: California, Hawaii, New Jersey, New York, and Rhode Island (and Puerto Rico). In these states, women who are pregnant can qualify for up to six week of paid leave through temporary disability insurance. The dollar amount varies from state to state, but the range hovers between 55 and 75 percent of salary with a weekly cap. Rhode Island offers the most generous package, while New York offers the least. Most private sector workers in these states, regardless of their company size, are eligible for these maternity leave programs.

Three states offer more broadly based paid family leave through disability insurance: California, New Jersey, and Rhode Island. In general, these states’ laws cover paid time off to care for a child that is a newborn, an adopted or foster child, a seriously ill family member, or a personal disability (including pregnancy). Washington State passed a similar law in 2008, but has pushed back implementation due to lack of funding.

Of all the fifty states, California leads the pack when it comes to passing laws that protect and expand paid family leave. Women who give birth are guaranteed 55 percent of their paycheck—with a weekly cap—and up to 12 weeks off work. Paychecks are funded through the state’s disability insurance. After more than five years, a vast majority of employers reported that the state’s paid family leave act has had minimal impact on their business operations, according to Leaves That Pay, Employer and Worker Experiences with Paid Leave in California, a book by Ruth Milkman, a professor of sociology at the CUNY Graduate Center, and Eileen Appelbaum, Senior Economist at the Center for Economic and Policy Research

California also offers paid family leave for both mothers and fathers for six weeks, up to 55 percent of monthly pay, with a weekly cap. Overall, a woman can take about four months off with a combination of paid and unpaid time. In total time, no other state comes close. While California, New Jersey, and Rhode Island are leading the pack, there are some private employers that offer family leave plans, regardless of the state in which their businesses operate. There are some trends worth noting. Most large corporations offer some type of paid family or maternity leave. For example, the tech giant Google offers women employees up to 22 weeks of paid maternity leave. But that generous plan isn’t the industry standard.

According to Working Mother Magazine, Deloitte, Ernst and Young, KPMG, and Prudential Financial are among the top rated companies in the U.S. for maternity and family leave, offering anywhere from nine to 12 weeks of paid leave for new parents.

The Prospects and Politics of Paid Family Leave

Approximately 185 countries in the world offer some type of legal protections for paid maternity leave. At least the federal level, the United States is not one of them. With approximately 71 percent of all children in the U.S. living in a household where both parents work, it would seem that paid family leave is poised for expansion. Yet only a small percentage of the U.S. population has access to such wage replacement.

As of 2012, only 11 percent of all private workers had access to paid family leave, according to the Bureau of U.S. Labor Statistics. Break down the job market even further and the availability of paid family leave paints a bleak picture: About 15 percent of employees in medium-to-large companies, eight percent of employees at smaller companies, and just four percent of part-time workers have access to paid family leave.

Compare those statistics to paid family leave plans worldwide and it’s clear that the United States has a long way to go. The countries of Finland, Hungary, Poland, and Slovakia offer two years or more of maternity leave. Canada, Denmark and Germany hover around 52 weeks. Even Mexico offers 12 weeks of paid leave.

While the numbers reveal a stark reality about the fate of paid maternity leave in the U.S., some in Congress are trying to change that reality. A new bill was introduced in December 2013 that would improve upon the FMLA. Similarly titled, the Family and Medical Leave Insurance Act (the FAMILY ACT) is sponsored by Senator Kirsten Gillenbrand of New York and Rep. Rosa DeLauro of Connecticut. The bill would permit employees to take a 12 week paid leave and receive up to 66 percent of weekly salary to care for a new child or seriously ill family member. Funding would be covered by fees paid by both the employee and employer. However, the bill is currently stalled in Congress. Some of the biggest concerns by business owners are abuse and fraud. But according to Leaves That Pay, most businesses in California have seen little fraud. In fact, 91 percent of respondents to an employer survey said they were not aware of any instance of program abuse.

While the fate of the FAMILY ACT remains unknown, workers should know the outcome of the Young v. UPS Supreme Court ruling in about six months. At the December 3rd, 2014 hearing, a majority of the questioning came from Justices Breyer, Ginsberg, Kagan, and Scalia. Much of the discussion revolved around the specific language and definition of the PDA, and whether the statute gave women a “most favored nation” status, a point noted twice by Justice Scalia. Most analysts agreed that it was unclear from line of questioning just how the Justices will rule. The public will have wait until June 2015 to hear the Court’s opinion on the case.

Further Reading

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